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Drug-running conviction is voided

Judge failed to 'neutralize' prosecutor's improper argument, 9th Circuit panel rules.

November 02, 2011|By Carol J. Williams, Los Angeles Times

A federal appeals court panel struck the conviction of a drug runner Tuesday because a prosecutor had suggested to a San Diego jury that an acquittal would "send a memo to all drug traffickers" that they could get away with smuggling if they claimed they were being threatened by Mexican cartels.

The three-judge panel of the U.S. 9th Circuit Court of Appeals said the conviction of Arturo Sanchez was the result of "improper argument" designed to stir jurors' passions, fears and vulnerabilities.

"Prosecutors may not point to a particular crisis in society and ask the jury to make a statement with their verdict," the appeals panel said in reversing Sanchez's conviction and sending the case back to the trial court.

"The prosecutor's 'send a memo' statement urged the jury to convict for reasons wholly irrelevant to Sanchez's guilt or innocence," said the opinion written by Judge Harry Pregerson, named to the court by President Carter, and joined by Judges Raymond C. Fisher and Marsha S. Berzon, both appointed by President Clinton.

Sanchez was convicted last year after a jury trial in the courtroom of U.S. District Judge M. James Lorenz and sentenced to two concurrent 10-year prison terms.

A U.S. citizen living in Mexico, Sanchez testified that he was coerced into driving drugs across the U.S. border by Mexican drug cartel figures who threatened to harm his family when he at first refused.

He was stopped by federal agents at the Calexico border crossing in May 2008 and subjected to inspection by drug-sniffing dogs of the car he was driving. The search found 64 pounds of cocaine in hidden compartments.

Sanchez admitted to customs agents that he knew there were drugs in the car but had been told it was marijuana. He asked the federal agents for help protecting his family but didn't specifically claim at the time of his arrest to have been under duress in transporting the drugs.

In his closing argument at trial, Asst. U.S. Atty. Carlos Arguello II suggested to the jurors that if they acquitted Sanchez, other drug traffickers would try to escape punishment by claiming they were under duress and being threatened by the cartels.

"Why don't we send a memo to all drug traffickers, to all persons south of the border and in Imperial County and in California — why not our nation while we're at it. Send a memo to them and say dear drug traffickers, when you hire someone to drive a load, tell them that they were forced to do it," Arguello said, predicting that more drug runners would be crossing the border because "they'll get away with it if they just say their family was threatened."

In his instructions to the jurors, Lorenz said the attorneys' comments were not to be considered evidence, but the judge "failed to neutralize" the prosecutor's prejudicial statement urging a verdict as a message, the 9th Circuit panel said.

"Prosecutors may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking," the panel said.

Arguello declined to comment.

David Zugman, the federal defender representing Sanchez, said his client is serving his sentence at the federal prison in Taft and would be eligible for bail pending retrial.

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